Schinner v. Schinner
| Decision Date | 13 January 1988 |
| Docket Number | No. 87-0472,87-0472 |
| Citation | 143 Wis.2d 81,420 N.W.2d 381 |
| Parties | In re the Marriage of Michelle SCHINNER, Petitioner-Appellant, v. Paul E. SCHINNER, Respondent. |
| Court | Wisconsin Court of Appeals |
Kathleen Ortman Miller & Associates, Milwaukee, for petitioner-appellant.
Law Offices of George N. Kotsonis, Milwaukee, for respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Michelle Schinner appeals from the property division and maintenance/support provisions of a divorce judgment entered in an action against her husband, Paul. Upon appeal, Michelle argues that the trial court erred in failing to include certain pretrial and post-trial earnings on Paul's retirement account which was awarded to Michelle through the use of a qualified domestic relations order (QDRO). 1 We disagree and conclude that the division of the pension fund was not a misuse of discretion. We affirm this portion of the judgment.
Michelle also argues that the trial court made certain mathematical errors. We agree and direct the modification of the judgment accordingly. Michelle also contends that the judgment is inconsistent in certain respects with the decision of the court, the state of the record, and agreements between the parties. We also agree with certain of these arguments and likewise direct that the judgment be modified accordingly.
Finally, Michelle argues that the trial court erred by failing to consider Paul's bonuses as an income stream for purposes of computing maintenance and support. We agree and reverse the maintenance and support provisions of the judgment. We remand for a redetermination of these two matters.
Paul and Michelle were married on November 13, 1970, when Paul was nineteen and Michelle was seventeen. Michelle worked fulltime for the first three years of the marriage until the birth of the parties' first child. Thereafter, Michelle worked only parttime until the birth of the parties' second child. She then worked as a fulltime homemaker for the duration of the marriage. After this action was commenced, she again took up parttime work.
Paul worked as a grocery stockboy when the parties were first married. Two years later he began working for his father's company, R.J. Schinner Company, working his way up from warehouse laborer to his present position as a successful salesman for the company.
Paul was paid a base salary. However, he also received regular bonus payments which oftentimes exceeded his base salary. Paul and Michelle were accustomed to a very comfortable lifestyle during their marriage and at the time they separated.
The judgment awarded custody of the two minor children to Michelle. Child support was fixed at $1000 per month. Maintenance in the amount of $500 per month for a period of forty-eight months was awarded to Michelle. A fifty-fifty division of the marital estate was ordered. Additional facts will be recited as the discussion of the issues requires.
Paul initially responds by arguing that Michelle has waived her right to raise certain issues on this appeal because she has already accepted the initial property division installment payment of $40,000 and because she did not bring a motion asking the trial court to amend its findings or to make additional findings pursuant to sec. 805.17(3), Stats.
Where the purpose of an appeal is to seek a more favorable award, the acceptance or use of that property actually awarded is not a waiver of the right to appeal. See Anderson v. Anderson, 72 Wis.2d 631, 638, 242 N.W.2d 165, 169 (1976). Michelle seeks a more favorable award upon appeal than that which she received in the trial court. Therefore she has not waived her right to raise this property division issue by virtue of her acceptance of a portion of the property division award.
Paul also argues that sec. 805.17(3), Stats., bars Michelle's claim. Section 805.17(3) provides:
AMENDMENT. Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial.
Subsection (4) of the same statute provides:
APPEAL. In actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has objected in the trial court to such findings or moved for new trial.
Paul reasons that the language of subsec. (4), providing that a post-judgment motion seeking a new trial is not necessary when the issue on appeal is the sufficiency of the evidence, mandates an inference that all other issues must be renewed by a post-judgment motion under subsec. (3). Michelle contends that nothing in the statute (or any case law) expressly requires such a post-trial procedure. We conclude that reasonable persons could differ on this question under the language of the statute. Therefore, the statute is ambiguous. See In re D.M.M., 137 Wis.2d 375, 384, 404 N.W.2d 530, 534 (1987). Accordingly, we must proceed to construe the statute. This presents a question of law. In re K.S., 137 Wis.2d 570, 574, 405 N.W.2d 78, 80 (1987).
If the language of the statute is ambiguous, we examine the scope, history, context, subject matter and object of the statute to discern the legislative intent. State v. Pham, 137 Wis.2d 31, 34, 403 N.W.2d 35, 36 (1987).
The genesis of sec. 805.17(3) and (4), Stats., is Rule 52(b) of the Federal Rules of Civil Procedure which provides:
Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment.
With only minor variations, sec. 805.17(3) and (4), Stats., is a restatement of this federal rule. This statute was part of the Wisconsin Rules of Civil Procedure adopted by the Wisconsin Supreme Court on February 17, 1975. Sup. Ct. Order, 67 Wis.2d 585 (1975) (eff. Jan. 1, 1976). The Judicial Council Committee's Note to what is now subsec. (4) of the statute observes:
Since judges are able to deliberate, with the aid of briefs prepared by counsel, before making findings, the findings should reflect the considered judgment of the court. That is to say, findings, unlike many rulings during trial, are not "shoot from the hip" affairs. Thus, in trials to the court, almost all motions for new trial based on alleged insufficiency Judicial Council Committee's Note--1974, Wis.Stat.Ann. sec. 805.17 (West 1977) (emphasis added, citation omitted). 2
of the evidence are denied. Since such motions become mere formalities, they are not required under the new code. However, there is nothing in this code to prevent a party from moving for a new trial after a trial to the court if such a motion seems appropriate
It is clear from this committee note that the supreme court, by enacting sec. 805.17(4), Stats., was eliminating the need for a post-trial motion challenging the sufficiency of the evidence following a bench trial as a prerequisite to an appeal. It remains to be answered, however, as to what the supreme court intended by its enactment of sec. 805.17(3). More specifically, we must determine what type of challenge to the factual findings of the trial court subsec. (3) contemplates and what is the effect, upon appeal, of a failure to follow this statute.
We first observe that we must read the two subsections in pari materia. See County of Dane v. Racine County, 118 Wis.2d 494, 498, 347 N.W.2d 622, 625 (Ct.App.1984). When so reading multiple statutes, we are obliged to interpret such that all statutes under consideration will be operative. See Maxey v. Redevelopment Auth., 120 Wis.2d 13, 24, 353 N.W.2d 812, 818 (Ct.App.1984). Obviously, this is all the more true when the language under consideration is in subsections of the same statute.
Although we are not bound by the federal courts' interpretations of state law, Lindsey v. Lindsey, 140 Wis.2d 684, 693, 412 N.W.2d 132, 136 (Ct.App.1987), we are free to look to the federal courts for interpretive assistance when the state law is modeled after a federal statute. See State ex rel. Lank v. Rzentkowski, 141 Wis.2d 846, 856 n. 5, 416 N.W.2d 635, 638 (Ct.App.1987). Such is the case here.
The federal courts have held that failure to bring a motion for amendment or expansion of the findings under Rule 52(b) of the Federal Rules of Civil Procedure does not operate to bar a litigant from arguing the sufficiency of the evidence upon appeal where the evidence is shown to be in conflict. 3 See Gilbert v. Sterrett, 509 F.2d 1389, 1393 (5th Cir.), cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975); Evans v. Suntreat Growers & Shippers, Inc., 531 F.2d 568, 570-71 (Temp.Emer.Ct.App.1976). This theme is echoed in the Judicial Council Committee's Note to sec. 805.17(4), Stats., noted earlier.
As to matters not concerning the sufficiency of the evidence, however, the federal courts have held that the primary purpose of Rule 52(b) is to enable an appellate court to obtain a correct understanding of the factual issues determined by the trial court as a basis for the conclusions of law and judgment entered thereon. Clark v. Nix, 578 F.Supp. 1515, 1516 (S.D.Iowa 1984); 9 C. Wright & A. Miller, Federal Practice & Procedure sec. 2582, at 722 (1971). Therefore, a motion to amend or expand the findings has been treated as one which...
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